Tuesday, September 23, 2008

I turned on my local Christian station this morning (99.3 FM in Austin) and ran smack into Dobson gearing up for a rant on abortion. I don't remember how I knew that it was going to be about abortion, but I could tell from a phrase and the tone.

Sure enough, it turns out they were talking about this clip from "The View." In this clip, John McCain says that Roe v Wade should be overturned so that abortion can once again be thrown as a matter to the states. McCain specifically says: "I want people who interpret the Constitution of the United States the way our founding fathers envisioned." Whoopi Goldberg asked: "Should I be worried about being a slave, about being returned to slavery? Because certain things happened in the Constitution that you had to change."

At this point, Dobson breaks in on the clip and berates Goldberg, saying that, of course it's the CONSTITUTION that outlawed slavery. Specifically, the 13th amendment passed under the Lincoln administration. And so, foolish Whoopi, she should learn some history.

This obviously misses the point, by a very long way. First, McCain's traditionalist appeal to the "what would the founding fathers do?" argument is very directly countered by Whoopi's point that the founding fathers supported slavery, even going so far as to write into the constitution that a slave's vote is worth 3/5 that of a regular person's is worth 3/5 of a person for the purpose of census counts (Article 1, Section 2, Paragraph 3).* That Lincoln had to come along and fix this only emphasizes that point, which is that no, we DON'T always want to strictly go by "original intent."

In addition, Dobson should turn the page to the next amendment, because that bears very directly on the kind of "states' rights" argument that John McCain invokes to indicate that RvW should be overturned. Ratified shortly after the 13th, the 14th amendment says:"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Later Supreme Courts recognized this as overruling what was originally a states' rights justification for slavery. Essentially, before the Civil War, individual states were free to allow or not allow slavery as they saw fit. The 14th amendment says that no, individual states are NOT allowed to override what has become the law of the land.

This was the same legal reasoning that was later used in the Roe v Wade decision. Previously, abortion was a matter that was left up to the states to allow or outlaw. Now it's not. Nobody's REQUIRED to provide abortions, but nobody can PREVENT you from having one, regardless of which state you live in. Despite what anti-abortion advocates would like you to think, this is not "legislating from the bench"; this is an ongoing process of exploring the legal ramifications of changes to the constitution, and this process started within a few years of the amendment's passage.

Whoopi had a perfectly valid point in the above clip. Our current interpretation of what the 14th amendment means is based on the way that historical courts have ruled on the matter. And that's perfectly constitutional. Unlike, say, the Bible, the Constitution isn't supposed to "interpret itself" (hah); the Constitution SAYS that the courts have the power to indicate what is Constitutional. Whoopi's point is that you can't just go back to the way the founding fathers interpreted their laws, because it's changed. One of those changes was disallowing prohibitions on abortion. Another was disallowing slavery. The same argument that invalidates one would also invalidate the other.

* Edited: The stricken out passage was a total brain fart. Obviously I wouldn't have meant to claim that slaves had any vote before the Voting Rights Act. Thanks for bringing that to my attention, Tommy.

8 comments:

It seems to me that many people absolutely hate whenever you draw an analogy from gays to blacks, or from women's abortion rights to slave rights. Once those lines get drawn, the anti-gay and or pro-life people start too seem to be behaving like racists. They really are trying to discriminate against people, and I think that Whoppi was spot on with her comparison.

One minor quibble. If memory serves, it was the representatives from the South that wanted African slaves counted as 3/5ths of a person for purposes of the census count. They were not allowed to get away with counting each slave as a person while denying them citizenship. I will have to doublecheck this.

As I remember it, the South wanted to count slaves as a full part of the population, which other states balked at, the 3/5th was the first of many historic compromises (Kansas-Nebraska Act, etc.) that ended in the Civil War.

Whoopi was right in picking up on McCain's statement of the founders, when he should have said simply the people who wrote the Constitution. The founders didn't write the 14th Amendment, but we still should interpret the Constitution the way it was intended when each part was written.

The issue that I have is that I'm not at all comfortable with the legal reasoning of Roe v. Wade, and this is where McCain has a valid point. There is no right to abortion spelled out in the Constitution, and the Constitution does state that things not in it are left up to the states. I don't see how the 14th Amendment applies to this situation at all.

You can say that it's bad policy for the government to forbid abortions, and I agree with that, but what I don't like is the way that right was arrived at. Courts should apply the law, not make it. If legalized abortion is a good idea, let's pass laws about it (or repeal laws banning it). But don't pretend that the Bill of Rights somehow implies the right to an abortion when it clearly doesn't.

>If legalized abortion is a good idea, let's pass laws about it (or repeal laws banning it). But don't pretend that the Bill of Rights somehow implies the right to an abortion when it clearly doesn't.

Laws are about restricting freedom, not providing for it. If I have a right to personal liberty--then laws that infringe upon that need to be justified via the Constitution.

I don't have to show a specified "right to abortion" in the Constitution. The state has to justify imposing the restriction. Why _shouldn't_ I have this liberty that impacts my body? Do other people have similar restrictions placed upon their reproductive decisions? If not, why should I be singled out due to gender and medical status? That's what needs to be addressed--whether the restriction that is being placed on a person's liberty is Constitutionally supported.

> I don't have to show a specified "right to abortion" in the Constitution. The state has to justify imposing the restriction.

Tracie, I have the impression from hearing you on the AE show that you're a very reasonable person, but I just don't get where you're coming from here.

Yes, laws banning abortion would restrict your liberty, like pretty much all laws do. The Bill of Rights specifies certain liberties that laws may not restrict, so if anyone tried to pass laws restricting freedoms that are guaranteed by the Constitution, those laws will be struck down. But abortion is clearly NOT one of those liberties spelled out in the Constitution.

I'd love to see abortion rights properly protected, but the only thing protecting them right now is a poorly reasoned Supreme Court decision. The legal reasoning of RvW is really a mess.

But abortion is clearly NOT one of those liberties spelled out in the Constitution.

I don't know, Curt, I'd say the right to reproductive control is covered under the 9th Amendment blanket statement that the people have more rights than are covered in the first eight. The right to privacy is implied heavily by the fourth, fifth, and fourteenth amendments, and while it's a jump to go from "privacy" to "abortion," cases about birth control that stem from the right to privacy (like Griswold) bridge much of the gap.

Myself, I think that abortion rights are justified enough by the fourth amendment declaration of a right to be "secure in their persons." Roe v. Wade may not be the best case ever, but I think the precedent and the implied rights of various amendments are enough to infer abortion protections.

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PLEASE NOTE: The Atheist Experience has moved to a new location, and this blog is now closed to comments. To participate in future discussions, please visit http://www.freethoughtblogs.com/axp.The Atheist Experience is a weekly live call-in television show sponsored by the Atheist Community of Austin. This independently-run blog (not sponsored by the ACA) features contributions from current and former hosts and co-hosts of the show.